Tuesday, October 21, 2008

Leading human rights groups reacted with outrage today to media reports that the administration of President George W. Bush has decided not to close the iconic prison at the U.S. Naval Base at Guantanamo Bay, Cuba.

Quoting anonymous senior Bush Administration officials, The New York Times reported today that the issue would in effect be “kicked the down the road” to await action by the new president when he takes office in January 2009.

The Times reported that Bush never considered proposals drafted by the State Department and the Pentagon that outlined options for transferring the detainees elsewhere.

According the newspaper, Bush adopted the view of his most hawkish advisers that closing Guantánamo would involve too many legal and political risks to be acceptable, now or any time soon, the officials said.

Civil libertarians were quick to condemn the Administration’s position.

Jameel Jaffer, Director of the National Security Project for the American Civil Liberties Union Foundation (ACLU), told IPS, “The decision to keep the prison open is deeply irresponsible. Hundreds of men have been held without charge and without trial for almost seven years. The administration's renewed commitment to Guantanamo means that these men will be imprisoned for even longer. And as long as the prison remains open, the country's standing in the world will continue to erode.”

He added, “At this point, the government has both a moral and legal obligation to close Guantanamo. Even President Bush has conceded that the prison should be closed. But unfortunately it seems that this administration is simply unwilling to show the leadership that would be required to actually get the job done.”

Jaffer was also critical of the controversial system of justice that exists at GITMO. He told IPS, “The handful of prisoners who have been charged with crimes are being tried in a system that is unfair and unconstitutional. It's a system that allows the government to rely on secret evidence, on hearsay, and on evidence that was elicited through abusive interrogation methods such as waterboarding.”

Jameel Jaffer has been an active participant in cases involving GITMO, the Bush Administration’s “domestic surveillance” program, provisions of the USA Patriot Act, and a number of related legal issues.

Shayana Kadidal, an attorney with the Center for Constitutional Rights (CCR) a legal advocacy organization that has provided attorneys for many of the Guantanamo detainees –expressed equal outrage. He told IPS, “We’ve been saying for two years now that the government’s litigation strategy is to run out the clock on these cases and leave the mess at Guantanamo for the next president to clean up – much like the misadventure in Iraq. At every stage the government has tried to maximize delay, with no discernable endgame to resolve the situation.”

He said that “various inside sources have told reporters for years that there are no more than two dozen men at Gitmo who might be worthy of facing charges. If the government chooses to charge them they should be charged and tried in federal court inside the Untied States. (Of course, this presents a real dilemma for individuals who have faced torture; there is domestic law stating that government conduct that shocks the conscience may render an individual untriable, regardless of whether the government has non-torture evidence it may lawfully rely on.)”

He added, “As to the rest, with narrow exceptions, men who are not going to face charges simply should not be detained. The exceptions relate to people actually captured on a conventional battlefield, which is a tiny fraction of the men at Guantanamo – about 4% overall.”

He predicted that “over 200 of the men still at Guantanamo will be returned to their home countries. The idea that moving prisoners to indefinite detention in Kansas will represent an improvement over Guantanamo is ridiculous.”

Shayana Kadidal is senior managing attorney of the Guantánamo project at the Center for Constitutional Rights and has been at CCR since 2001. In addition to supervising the Guantánamo litigation, he has also worked on the Center's case against the NSA's warrantless surveillance program, (CCR v. Bush), and its challenge to the "material support" statute, (HLP v. Mukasey).

Other legal and human rights organizations have also weighed in on the Guantanamo issue. For example, Human Rights First (HRF) has drafted a report, “How to Close Guantanamo: Blueprint for the Next U.S. Administration.” (http://www.humanrightsfirst.org/pdf/080818-USLS-gitmo-blueprint.pdf), detailing a step-by-step process for closing Guantanamo and dealing responsibly and legally with the detainees.

According to HRF’s International Legal Director, Gabor Rona, “Those who can be tried under the laws of war and other criminal laws should be prosecuted. Those who will not be prosecuted by the U.S. must be released to their home country or a third country where they will not be at risk of ill treatment. They may also be subject to prosecution. But this process cannot take place in a vacuum. It must be part of a larger effort to return the US to practices that respect its international legal obligations under the Geneva Conventions and human rights treaties.”

He told IPS that “This means, at a minimum, abandoning the concept of ‘enemy combatant’, which is unknown in the laws of war and which was created by this Administration to remove detainees from the law. A return to the traditional concepts of combatant and civilian will provide the best of both worlds: the ability to prosecute criminals in the normal course of justice and the right of innocents to get their day in court.”

Since the U.S. began sending prisoners to from Afghanistan to Guantanamo in January 2002, the island prison has become the center of a highly charged chapter in American jurisprudence. U.S. Appeals Courts and the U.S. Supreme Court have ruled against various aspects of the Guantanamo legal regimen. The Supreme Court declared the Bush-constructed Military Commissions unconstitutional. And it ruled that Congress could not block detainees’ right to petition for habeas corpus.

In that landmark decision, Boumediene et al v. Bush, the high court ruled 5-4 that prisoners held as “enemy combatants” at Guantánamo Bay, Cuba can immediately file habeas corpus petitions in U.S. district courts challenging the legality of their confinement.

Legal and human rights advocates have characterized that opinion as “a rebuke to a cornerstone of the Bush administration’s so-called ‘global war on terror’.” They say that by holding unconstitutional the provision of the 2006 Military Commissions Act (MCA) stripping Guantánamo Bay prisoners of their habeas corpus rights, the Supreme Court has stopped the Bush administration from continuing to use the naval base as a legal limbo, where it can imprison people indefinitely without regard for either domestic or international law.

In another case, a highly fractured court ordered that the government establish tribunals to determine whether individuals are in fact “enemy combatants.” That same day the court also decided Rasul v. Bush, recognizing that Guantánamo prisoners were entitled to file petitions for habeas corpus under the terms of the congressional Habeas Corpus Act.

In response, Bush administration lawyers established Combat Status Review Tribunals (CSRTs) — considered by many legal scholars to be kangaroo courts where prisoners are denied lawyers and, in most cases, access to the evidence against them — and Congress passed the Detainee Treatment Act (DTA), which revoked habeas corpus for Guantánamo prisoners, giving them access to U.S. courts only for a cursory review of whether CSRT procedures were followed correctly.

In June 2006 the Supreme Court decided in Hamdan v. Rumsfeld that the DTA’s ban on habeas petitions did not apply to those already filed. The Bush administration, with the complicity of key congressional Democrats, rammed through the Military Commissions Act (MCA), which contained a provision depriving federal courts of jurisdiction over all habeas petitions filed by Guantánamo prisoners.

Hamdan, the Yemeni-born driver for Osama bin Laden who was captured in Afghanistan, became the first GITMO detainee ever to be tried by Military Commission. He was convicted of aiding terrorism but acquitted on a charge of conspiring to commit terrorist attacks including those on Sept. 11. Given credit for years already served, Hamdan could be eligible for release before the end of 2008, though the government has recently claimed that the court over-estimated the time he has served.

Over the years, evidence obtained largely from government records has shown that practices tantamount to torture have been widely and consistently practiced at Guantanamo, in violation of the Geneva Conventions.

The effect of Bush’s decision is to retain a prison that has become a worldwide negative icon for the administration’s fight against terrorism.

The decision also leaves another major foreign policy dilemma for the next president. Both Senators John McCain and Barack Obama have called for closing Guantánamo. Either candidate could reverse Mr. Bush’s policy, but neither has discussed how he would deal with the legal consequences of shutting the prison. The principal issue is where to imprison and/or try the remaining approximately 250 Guantanamo detainees, many of whom have already been declared eligible for release.

Seventeen Chinese Muslims who have been imprisoned at Guantanamo Bay for seven years will now have to wait still longer to discover whether a U.S. appeals court will confirm or reverse a judge’s earlier decision that they be immediately released into the United States.

Yesterday, a split federal appeals court refused to allow the immediate release into the U.S. of the 17, which means they will remain in prison for at least several more weeks.

In a 2-1 decision, the U.S. Court of Appeals for the D.C. Circuit agreed with the Bush administration’s argument that the Muslims' release should be halted while the government prepares its full appeal. The court will hear oral arguments on Nov. 24.

Meanwhile, lawyers for the detainees were said to be considering other options. It has been reported that an appeal directly to the Supreme Court might be a possibility, since that court ruled last June that foreign detainees at Guantanamo have the right to appeal to federal judges to challenge their imprisonment.

Two appointees of the first President Bush voted to halt the detainees' immediate release. They are Judges Karen Henderson and A. Raymond Randolph.

But in an outspoken dissent, Judge Judith W. Rogers argued that the detainees should be freed. She noted that the Bush administration had acknowledged the Uighurs were no longer considered enemy combatants even as it continued to argue the detainees were a national security risk based on little more than the fact they had admitted to receiving weapons training in Afghanistan.

"The fact that petitioners received firearms training cannot alone show they are dangerous, unless millions of United States resident citizens who have received firearms training are to be deemed dangerous as well," Rogers wrote. "And, in any event, the district court found there is no evidence petitioners harbor hostility toward the United States."

She added that the government's appeal was problematic "given both the length of time that petitioners have been denied their liberty" and the years the government has already had up to now — with little success — to justify the Uighurs' continued imprisonment.

Judge Rogers was appointed by President Clinton.

The appeals court's move came after U.S. District Judge Ricardo M. Urbinaon October 10 ruled that the government should free the detainees immediately and ordered them brought physically to his court. Urbina said it would be wrong for the Bush administration to continue holding the Uighurs since they are no longer considered enemy combatants.

The detainees were days away from being released when the government requested and received a stay of Judge Urbina’s ruling to allow time for an appeal.

Lawyers for the Uighurs had carefully set up arrangements for the Uighurs’ to be placed in the custody of religious organizations and individuals in the U.S.

Among the central issues in the case is whether a federal judge has the authority to order the release of Guantanamo prisoners who were unlawfully detained by the U.S. and cannot be sent back to their homeland. The Uighurs, who are Turkic-speaking Muslims in western China, have been cleared for release from Guantanamo but fear they will be tortured if they are turned over to China.

Also at issue is the potential use of immigration law by the government to prevent the Uighurs from entering the U.S. It is possible they could be freed into the U.S. by a federal court, but then immediately re-arrested, detained and ultimately deported because they had not been legally admitted into the U.S.

Judge Urbina’s ruling may yet become one of the historic decisions in U.S. jurisprudence. He wrote, ”There come a time when delayed action prompted by judicial deference to the executive branch's function yields inaction not consistent with constitutional imperative. Such a time has come in the case of the 17 Uighurs in Guantanamo Bay, Cuba...whom the government has held for seven years without an opportunity for judicial redress until recently."

Urbina noted that it was the government that decided that it would no longer consider the 17 Uighurs as enemy combatants.

After the Supreme Court's decision in Boumedienne v. Bush -- restoring the court's jurisdiction over habeas corpus petitions -- the Uighurs filed motions alleging that their continued detention was unlawful and requesting the court order the government to release them into the U.S.

Urbina ruled that "Because the Constitution prohibits indefinite detention with just cause…continued detention of the petitioners is unlawful."

"Because separation of powers concerns do not trump the very principle upon which this nation was founded -- the unalienable right to liberty -- the court orders the government to release the petitioners into the U.S," he wrote.

The Bush administration has said it was continuing "heightened" efforts to find another country to accept the Uighurs.

Albania accepted five Uighur detainees in 2006 but since has balked at taking others. Other nations are said to have followed the same tack, reportedly out of fear of diplomatic repercussions from China. Foreign policy experts have also noted that the U.S. appears to have greatly diminished leverage in the world community to persuade other countries to accept the Uighurs.

Uighurs are from Xinjiang — an isolated region that borders Afghanistan, Pakistan and six Central Asian nations. They say they have been repressed by the Chinese government. China long has said that insurgents are leading an Islamic separatist movement in Xinjiang. The Uighur detainees were captured in Pakistan and Afghanistan in 2001.

The possibility that Judge Urbina’s decision will prevail cannot be ruled out. From time to time, a decision of a lower court judge is reversed by an appeals court – but ultimately affirmed by the Supreme Court.

David Cole, a law professor at Georgetown University and one of the Uighurs’ attorneys, told us that this is precisely what happened in another landmark Guantanamo case, Hamdan v. Bush.

“Surprisingly,” Cole said, “Hamdan prevailed in the district court, when U.S. District Judge James Robertson courageously ruled that trying Hamdan in a military tribunal of the kind set up by the government would violate the Geneva Conventions.”

But Cole added that, “Not surprisingly, that decision was unanimously reversed, on every conceivable ground, by the Court of Appeals for the D.C. Circuit, in an opinion joined fully by then Judge, now Chief Justice, John Roberts.”

He noted that after the Supreme Court agreed to hear the Hamdan case, Congress passed a law that appeared to be designed to strip the Supreme Court of its jurisdiction to do so. The law “required defendants in military tribunals to undergo their trials before seeking judicial review, and prescribed the D.C. Circuit as the exclusive forum for such review,” Cole said.

But in June 2008, the Supreme Court ruled 5-4 that the Military Commissions Act of 2006 unconstitutionally limited detainee's access to judicial review and that detainees have the right to challenge their detention in conventional civilian courts.

Salim Hamdan, the Yemeni-born driver for Osama bin Laden who was captured in Afghanistan, was charged at Guantanamo, tried last August before the first Military Tribunal, convicted of aiding terrorism but acquitted on a charge of conspiring to commit terrorist attacks including those on Sept. 11. Given credit for years already served, Hamdan could be eligible for release before the end of 2008.

In a related and far-reaching development, President George W. Bush today announced that his administration would in effect “kick the Guantánamo can down the road” – and not close the notorious prison.

Quoting senior administration officials, newspapers reported that Bush never considered proposals drafted by the State Department and the Pentagon that outlined options for transferring the detainees elsewhere.

According the U.S. media, Bush adopted the view of his most hawkish advisers that closing Guantánamo would involve too many legal and political risks to be acceptable, now or any time soon, the officials said.

The effect of Bush’s decision is to retain a prison that has become a worldwide negative icon for the administration’s fight against terrorism.

The decision also leaves another major foreign policy dilemma for the next president. Both Senators John McCain and Barack Obama have called for closing Guantánamo. Either candidate could reverse Mr. Bush’s policy, but neither has discussed how he would deal with the legal consequences of shutting the prison. The principal issue is where to imprison and/or try the remaining approximately 255 Guantanamo detainees, many of whom have already been declared eligible for release.

About Me

William Fisher has managed economic development programs for the US State Department and the US Agency for International Development in the Middle East, Latin America and elsewhere for the past 25 years. He served in the administration of President John F. Kennedy.